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STATE OF MAINE CUMBERLAND, ss

SUPERIOR COURT / CIVIL ACTION Docket No. CV-09-22
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ROBERT WHITMORE, Plaintiff,
v.
Cumberland,
STATE OF MAINE
55,

Clerk's Office

ORDER

HOWARD F. O'BRIEN III, et aI., Defendants.

Nt P't 14 2010 RECEIVED

In this case plaintiff Robert Whitmore is suing defendant Howard O'Brien and his law firm for legal malpractice, alleging that O'Brien's deficient performance as defense counsel resulted in Whitmore's conviction and incarceration for gross sexual assault. Whitmore successfully pursued a petition for post conviction review and was acquitted on retrial five years after his original conviction. Before the court is Whitmore's motion for summary judgment. Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements.
E.g., Johnson v. McNeil, 2002 ME 99 lJ[ 8, 800 A.2d 702, 704. The facts must be considered

in the light most favorable to the non-moving party.

[d.

Thus, for purposes of

summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99
lJ[ 8, 694 A.2d 924, 926.

Undisputed Facts In this case the facts upon Whitmore's motion for summary judgment is based are undisputed. In October 2003 Whitmore was indicted on 8 counts of gross sexual assault and 8 counts of unlawful sexual contact. O'Brien was appointed as plaintiff's defense counsel. Whitmore went to trial and was found guilty by the jury on January 29, 2004 on all charges. He was sentenced to 15 years in prison with all but 10 suspended. Whitmore thereafter filed a petition for post conviction review. In a decision dated February 16, 2007 the Superior Court (Mills, J.) granted plaintiff's petition for post conviction review, concluding that O'Brien had engaged in a manifestly unreasonable trial strategy and that his actions constituted ineffective assistance of counsel. Specifically, the court faulted O'Brien's failure to meet with and prepare the defendant and other witnesses, O'Brien's role in the defendant's failure to testify, O'Brien's failure to investigate potential out of state witnesses, and his failure to pursue a theory that the victim's grandmother had supported the charges in order to obtain custody of the victim for religious reasons. The Superior Court's February 16, 2007 decision was affirmed by the Law Court in March 2008. On retrial Whitmore was acquitted on all counts. At the second trial Whitmore, who had not testified at the first trial, testified in his own defense. He also called several out of state witnesses who had not testified at the first trial.1

I It is not clear from the summary judgment record whether at the second trial the defense sought to impeach the victim's grandmother by suggesting a religious motivation.

2

Given those undisputed facts, the issues presented on the instant motion are primarily legal:
(1) Whether the post conviction court's February 16, 2007 order

collaterally estops O'Brien from contesting that his performance as defense counsel amounted to serious incompetency, inefficiency, or inattention that fell below the standard that would be expected from an ordinarily fallible attorney and likely deprived Whitmore of a otherwise available ground of defense; and (2) Whether, in a case alleging malpractice on the part of defense counsel in a criminal case, Whitmore must not only show the traditional elements of a legal malpractice claim but must also show by a preponderance of the evidence that he was actually innocent of the offenses charged.

Collateral Estoppel Whitmore argues that O'Brien is collaterally estopped by the February 16, 2007 decision of the post conviction court from contesting that he committed malpractice. The court agrees that the question of whether O'Brien's performance was ineffective for purposes of post-conviction review is essentially identical with the issue of whether O'Brien committed legal malpractice by breaching the standard of care applicable to defense attorneys. However, O'Brien is not collaterally estopped in this case because he was not a party to the post conviction proceeding. Maine allows collateral estoppel to be used offensively, Hossler v. Barry, 403 A.2d 762, 767 (Me 1979), but only where the same parties or their privies previously litigated the issue. Id. In the post conviction proceeding the parties were Whitmore and the State of Maine. O'Brien appeared as a witness at the post conviction hearing, but he was not a 3


party. Nor can O'Brien be found to have been in privity with the State with respect to the post conviction proceeding. "Privity exists when two parties have a commonality of ownership, control, and interest in a proceeding." Beal v. Allstate Insurance Co., 2010 ME 20 <JI 20, 989 A.2d 733, 740. O'Brien did not work for the State, and in fact his normal role as defense attorney places him in an adversary relationship to the State. Nor did O'Brien have any control over the State's litigation of the post conviction proceeding.

See Restatement 2d Judgments

Download CUMcv-09-224.pdf

Maine Law